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Friday, May 30, 2014

State Employees’ Retirement System member must have been a public officer or employee earlier in order to “buy back” service credit for such service


State Employees’ Retirement System member must have been a public officer or employee earlier in order to “buy back” service credit for such service 
2014 NY Slip Op 03904, Appellate Division, Third Department

A member [Member] of the NYS Employees' Retirement System sought to "buy back" member service credit based on his service as a hearing examiner with the City of New York. The Comptroller determined that Member was not an employee of the City and thus was ineligible to purchase service credit for that work.

In an earlier action* Member contended that he served as an “officer” of the City of New York and the matter was remanded to the Comptroller to address that claim. The Comptroller rejected Member’s claim that he was a public officer by reason of his so serving as a hearing examiner and Member appealed that determination as well.

The Appellate Division affirmed the Comptroller’s decision, explaining that the Comptroller "is charged with the responsibility of determining service credits for retirement purposes and his determination will be upheld if rational and supported by substantial evidence.” Further, said the court, Member had the burden of establishing his entitlement to the additional service credit.

The service credit question's result was dependent on whether Member had been engaged in "previous service with a public employer” that would have been creditable in one of the public retirement systems of the State, in this instance the New York City Employees' Retirement System. In other words, Member would have had to have been eligible for membership in NYCERS based on his work as a hearing examiner being deemed service as an officer of the City.

The City of New York Law Department, however, had taken the position that hearing examiners were neither city officers nor employees and NYCERS had determined that hearing examiners were not city officers such as to render them eligible for membership. The Comptroller relied upon these determinations in formulating his decision.

The court commented that even if the Comptroller had not relied on the views of the City’s Law Department and NYCERS in this regard, substantial evidence nevertheless supported the Comptroller's finding that Member was not a city officer entitled to claim prior service credit. Member, said the court, did not demonstrate that he served as a public officer in that he failed to show that he had been appointed for any specific length of time, was "a manager or policy maker," had filed a financial disclosure statement and that he had taken or filed an oath of office.

Although evidence in the record could support a different result, the Appellate Division concluded that there was sufficient substantial evidence in the record to support the Comptroller's determination that Member was not entitled to “prior service credit.”

* See 81 AD3d 1156.


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Thursday, May 29, 2014

Albany Law School offers Continuing Legal Education [CLE] courses on line



Albany Law School offers Continuing Legal Education [CLE] courses on line

Attorneys in New York state admitted to practice for more than two years are able to take their CLE courses by viewing educational sessions online by approved CLE providers.

Albany Law School, an accredited CLE provider in New York state, now has a library of interesting CLE programs for viewing online, given by leaders in the field, including Albany Law faculty, alums and other experts.

Sample sessions include:

Professor Robert Heverly’s lively discussion of the ethical issues related to attorney use of social media

Professor Michael Hutter’s engaging overview of recent U.S. Supreme Court decisions on personal jurisdiction

Catherine Hedgeman's explication of recent updates to New York’s Not-for-Profit Corporations Law

Professor Dorothy Hill and Professor Nancy Nancy Maurer's training on how to supervise law students

CLE sessions are available for download for $25 per credit hour and no separate membership or affiliation with Albany Law School is required to access the courses.



For more information or questions regarding the online CLE program, please contact Lisa Rivage at lriva@albanylaw.edu or 518-472-5888.

Additional course will be available soon. To receive notice when new courses are available, please email Amy Gunnells at agunn@albanylaw.edu.
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Volunteer firefighters must be afforded due process in disciplinary proceedings


Volunteer firefighters must be afforded due process in disciplinary proceedings


A volunteer firefighter was suspended from active duty with the Fire Company for a period of one year, which subsequently was reduced to a suspension from active duty for a period of six months and a suspension from social functions for another period of six months.

The firefighter filed a CPLR Article 78 petition contending that the Fire Company's disciplinary proceeding failed to comply with the requirements of Civil Service Law §75 with respect to his status as an exempt volunteer firefighter.* Supreme Court remitted the matter to the Fire Company to conduct a hearing in accordance with Civil Service Law §75 and for a new determination thereafter.

The Appellate Division affirmed the result but in so doing noted the relevant provision of law was General Municipal Law §209-l and not the Civil Service Law §75.

The Appellate Division explained that "Civil Service Law §75(1)(b) provides certain procedural protections to permanent employees in the competitive class and to permanent appointee in the classified service not in the competitive class who are also exempt volunteer firefighters. The statute provides these protections to all individuals employed in classified civil service positions who fit within its definitions."

Although in this instance the firefighter was an exempt volunteer firefighter, he has not been subjected to disciplinary action by as an employee of the State as the employer or as an employee of a political subdivision of the State. The court rejected the firefighter’s argument that his status as an exempt volunteer firefighter, standing alone, entitled him to the protection of Civil Service Law §75.**

However, the Appellate Division found “no merit” in the Fire Company’s contention that it did not have to comply with the hearing requirements of General Municipal Law §209-l because this matter did not involve the firefighter's "removal" from the Fire Company. 

The court said "[A]; volunteer firefighter must be afforded due process in disciplinary proceedings” where he or she has been subjected to disciplinary action initiated by his or her Fire Company, citing Matter of Greene v Medford Fire Department, 6 AD3d 705. This, said the court, is true whether the penalty that is ultimately imposed entails the firefighter's permanent removal from his or her position, or a suspension from the position.”

The court pointed out that General Municipal Law §209-l(5) provides that "[t];he officer or body having the power to remove the person charged with incompetence or misconduct may suspend such person after charges are filed and pending disposition of the charges, and after the hearing may remove such person or may suspend him or her for a period of time not to exceed one year" (emphasis supplied by the court).

The Appellate Division found that the plain meaning of this provision is that a volunteer firefighter may only be temporarily suspended, without a hearing, from the time that the charges are filed until the ultimate disposition of the charges, but that a hearing is required to actually dispose of the charges, and that a final penalty of suspension, not to exceed one year, may only be imposed after that hearing. Accordingly, the Fire Company was required to comply with the procedures set our in General Municipal Law §209-l

Thus, the Appellate Division ruled that Supreme Court “properly remitted the matter to the Fire Company for further proceedings, including a hearing on the charges preferred against the [firefighter], and a new determination thereafter.

* The qualifications for certification as an exempt volunteer firefighter are set out in §200 of the General Municipal Law. General Municipal Law §202 provides for a certificate to be issued to a person qualified to be an exempt volunteer firefighter.

** See Civil Service Law §75[1];[b]).



___________________________

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html
___________________________
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Wednesday, May 28, 2014

Unsatisfactory performance rating


Unsatisfactory performance rating 
2014 NY Slip Op 03765, Appellate Division, First Department

A second-year probationary teacher took over the class in the second week of November. The principal gave her Unsatisfactory Performance Rating [U-rating] at the end of the school year based on facts indicating a lack of progress toward implementing suggestions to improve the teaching and learning environment in the classroom, together with the principal’s view that the teacher had inherited a well-managed class without instructional and disciplinary concerns which deteriorated under the probationary teacher's leadership.

The teacher filed an Article 78 petition seeking a court order annulling her U-rating for the school year. Supreme Court granted her petition and remanding the matter to the New York City Board of Education for a new determination of the teacher’s performance rating for that year.

The Appellate Division unanimously reversed the Supreme Court ruling “on the law,” explaining that on the records presented the teacher failed to demonstrate that the U-rating was arbitrary and capricious, or made in bad faith.

The court said that the record showed a rational basis for the conclusion that the teacher’s performance was unsatisfactory as evidenced by the three formal classroom observation reports describing her performance in class management and engagement of students. While the teacher asserted that she did not receive any mandatory pre-observation conferences before any of her classroom observations, she has not established that the U-rating was made in violation of a lawful procedure or substantial right

The teacher also alleged that she was never provided a curriculum or a professional development plan, that the school's administration did not help her manage the class's continued disciplinary problems and that no member of the administration modeled lesson plans for her. However, said the court, the record established that she had received professional support and that she had not sufficiently progressed during the year.

As examples, the Appellate Divisions noted that the teacher had been observed in the classroom three times and had received unsatisfactory ratings for the last two observations. Further, each observation was followed a report indicating areas for improvement and which set out specific recommendations for addressing observed the deficiencies.

Another factor considered by the court: the record indicated that the teacher was provided with professional development sessions after receiving her first unsatisfactory report but the same instructional deficiencies continued to appear in the next observation report, indicating that the teacher “had not implemented the recommendations for improvement.”


Tuesday, May 27, 2014

BLACK LETTER law may not be that black



BLACK LETTER LAW may not be that black
Source: New York Times article by Adam Liptak

In an article captioned "Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing" that appeared in the New York Times dated May 24, 2014, Adam Liptak introduces the subject to the reader as follows:

“WASHINGTON — The [United States] Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.”

Professor Lazarus’ article, now in draft, is scheduled for publication in the December 2014 issue of the Harvard Law Review.

Mr. Liptak’s article is posted on the Internet at:


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Friday, May 23, 2014

Lying to investigators


Lying to investigators
2014 NY Slip Op 03623, Appellate Division, First Department

A New York Police Officer challenged her dismissal from her position as a police officer. The Appellate Division unanimously denied her petition, noting that “The penalty of dismissal does not shock the conscience in that petitioner was found to have engaged in serious misconduct, and admitted other less serious charges committed during her short career as a police officer”.

The court found that there was substantial evidence to support finding her guilty of certain disciplinary charges, including her admissions that she lied to federal agents conducting a drug trafficking investigation.

In Bryson v. United States, 396 U.S. 64 (1969), the United States Supreme Court said: "Our legal system provides methods for challenging the Government's right to ask questions - lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood."

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Thursday, May 22, 2014

Teacher’s prior unblemished record of service did not mitigate imposing termination as the penalty after being found guilty of professional misconduct and other charges


Teacher’s prior unblemished record of service did not mitigate imposing termination as the   penalty after being found guilty of professional misconduct and other charges
2014 NY Slip Op 03210, Appellate Division, First Department
A tenured schoolteacher [Teacher] was found guilty of a number of disciplinary charges alleging professional misconduct, neglect of duty, failure to follow procedures and carry out duties, and incompetent and inefficient service during two school years over a two-year period.

Teacher challenged the Department of Education’s decision to terminate her. Supreme Court vacated the termination and remanded the matter to the Department for its determination of a lesser penalty.

The Appellate Division reversed the lower court’s ruling, noting that the Hearing Officer upheld many of the charges and specifications lodged against Teacher, which findings were not challenged on appeal.

Furthermore, said the court, the evidence showed that notwithstanding Teacher's prior unblemished record of service, she continued to blame others and refused to accept responsibility for her failure to effectively manage her classroom and deliver effective instruction and was unwilling to implement any of the school administration's suggestions for improvement.

The Appellate Division held that under the circumstances the penalty of termination “does not shock one's sense of fairness,” applying the so-called Pell standard [Pell v Board of Education, 34 NY2d 222].



___________________________

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html
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Wednesday, May 21, 2014

Defending and indemnifying officers and employees of the State involved in litigation


Defending and indemnifying officers and employees of the State involved in litigation
Public Officers Law §§17 and 19

In the event an officer or an employee of the State as the employer is sued in connection some alleged act or omission in the performance of his or her official duties, he or she may seek representation by the State and indemnification in the event he or she is held liable for damages and fees under certain circumstances.*

§17 of the Public Officers Law applies with respect to civil proceedings and provides for the defense and indemnification of officers and employees as defined in Subdivision 1 of §17 in the event such an individual is in a civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the individual was acting within the scope of his or her public employment or duties; or which is brought to enforce a provision of 42 USC 1981 or 42 USC 1983 [Federal Civil Rights Acts]. This duty, however, does not arise where the civil action or proceeding is brought by or on behalf of the State.

The State’s duty to defend or indemnify and save harmless the individual is subject to the following conditions::

1. The individual’s delivery of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he or she is served with such document to the Attorney General or an Assistant Attorney General at an office of the Department of Law in the State, and

2. The full cooperation of the individual in the defense of such action or proceeding and in defense of any action or proceeding against the State based upon the same act or omission, and in the prosecution of any appeal.

The timely delivery of such documents is deemed a request by the individual that the State provide for his or her defense and indemnification pursuant to §17.
 
§19 of the Public Officers Law applies in criminal actions and provides for the State to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an officer or employee of the State as the employer in his or her defense of a criminal proceeding in a State or Federal court:

1. arising out of any act which the individual was acting within the scope of his or her public employment or duties upon his or her acquittal or upon the dismissal of the criminal charges against him or her or

2. incurred in connection with an appearance before a grand jury which returns no true bill against the individual where the individual's appearance was required as a result of any act which occurred while the individual was acting within the scope of his or her public employment or duties if such appearance did not occur in the normal course of the public employment or duties of the individual.

However, such reimbursement is also conditioned on (a) the individual’s timely delivery of a written request for such reimbursement of expenses together with, in the case of a criminal proceeding, the original or a copy of an accusatory instrument within ten days after he or she was arraigned pursuant to such instrument or, in the case of an appearance before a grand jury, written evidence of such an appearance. Such an item is to be delivered to the Attorney General or an Assistant Attorney General at an office of the Department of Law in the State.

In the event a request for reimbursement for reasonable attorneys' fees or litigation expenses or both made by, or on behalf of, the individual, the Attorney General is to investigate and review of the facts and circumstances involved and determine whether such reimbursement shall be paid. The Attorney General is to then notify the individual in writing of that determination.

Another condition to be met by the individual:seeking such reimbursement is his or her full cooperation in the defense of any action or proceeding against the State based upon the same act, and in the prosecution of any appeal.

* §18 of the Public Officers Law authorizes a political subdivision of the State to adopt a law, by-law, rule, resolution or regulation providing for the defense and indemnification of the entity’s officers and employees.
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Tuesday, May 20, 2014

An applicant for a preliminary injunction must satisfy two tests: a showing of irreparable injury if its application is not granted and its probability of success on the merits


An applicant for a preliminary injunction must satisfy two tests: a showing of irreparable injury if its application is not granted and its probability of success on the merits
Patrolmen's Benevolent Assn. of the City of New York, Inc. v City of New York, 2014 NY Slip Op 03464, Appellate Division, First Department

Three members of the Patrolmen's Benevolent Association of the City of New York, Inc. (PBA) were elected to four-year terms as the sole borough-wide PBA representatives for police officers assigned to the Bronx. The three were issued Release Time certificates pursuant to Mayor's Executive Order #75 (3/22/73) (EO 75) which provided the three elected PBA members with full-time leaves with pay and benefits.

A grand jury indicted the three members in connection with an alleged ticket-fixing scheme.* Pursuant to Civil Service Law §75(3-a), the three individuals were suspended without pay for 30 days, after which they were restored to modified duty. In addition the City rescinded their respective Release Time certificates. The PBA, however, declined the City’s offer to issue new Release Time certificates for three other employees of the union's choice, and filed a contract grievance with the City’s Office of Labor Relations.

After the grievance was denied, petitioners filed a demand for arbitration with the New York City Office of Collective Bargaining seeking to have the certificates reinstated on the ground that the rescission violated the parties' collective bargaining agreement and EO #75. In addition, the PBA filed an application in Supreme Court pursuant to CPLR Article 75 seeking a preliminary injunction barring the revocations of the Released Time Certificates pending arbitration.

Supreme Court granted the PBA a preliminary injunction enjoining the City from denying or revoking the "Release Time" certificates to the three PBA members pending resolution of arbitration proceedings.

CPLR §7502(c) provides that the Supreme Court "may entertain an application for ... a preliminary injunction in connection with an arbitration that is pending The party seeking the preliminary injunction must demonstrate a probability of success on the merits, a danger of irreparable injury in the absence of a preliminary injunction preliminary injunction being issued, and a balance of the equities in its favor.

The City appealed. The Appellate Division, Judges Tom and Gische dissenting, vacated the Supreme Court’s preliminary injunction, explaining that the PBA, even assuming that an arbitration award in its favor would be render ineffectual without such provisional relief, failed to establish a likelihood of success on the merits of the claim to be arbitrated.

* The Appellate Division's opinion states “The indictments of the [three members] on charges related to a ticket-fixing scheme ... include allegations of grand larceny, official misconduct, tampering with public records, and criminal solicitation ...."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_03464.htm

Monday, May 19, 2014

Removal of volunteer officers and volunteer members of a volunteer fire department


Removal of volunteer officers and volunteer members of a volunteer fire department
2014 NY Slip Op 03521, Appellate Division, Second Department

The Board of Fire Commissioners expelled a member of the Fire Department. The member sued and Supreme Court annulled the Board’s determination and remitting the matter for a hearing and a new determination.*  thereafter, and the petitioner cross-appeals from so much of the order as failed to grant the petition in its entirety.

The Appellate Division affirmed the lower court’s ruling, explaining that as the member was entitled to a hearing “upon due notice and upon stated charge” under General Municipal Law §209-l but was not afforded one, “the Supreme Court properly annulled the determination and remitted the matter for a hearing and a new determination thereafter.”

GML §209-l addresses the removal of volunteer officers and volunteer members of volunteer fire departments and, in pertinent part, provides:

1. The authorities having control of fire departments of cities, towns, villages and fire districts may make regulations governing the removal of volunteer officers and volunteer members of such departments and the companies thereof.

2. Such officers and members of such departments and companies shall not be removed from office, or membership, as the case may be, by such authorities or by any other officer or body, except for incompetence or misconduct.**

3. Removals on the ground of incompetence or misconduct, except for absenteeism at fires or meetings, shall be made only after a hearing upon due notice and upon stated charges and with the right to such officer or member to a review pursuant to article seventy-eight of the civil practice law and rules. Such charges shall be in writing and may be made by any such authority. The burden of proving incompetency or misconduct shall be upon the person alleging the same.

* On a procedural note, in this instance, “on the Court's own motion,” the notice of appeal and the notice of cross appeal from the [Supreme Court’s] order was deemed to be applications for leave to appeal, and cross-appeal, respectively, and leave to appeal and cross-appeal is granted


** N.B. §209-l, however, further provides that  “The    provisions of this section shall not affect the right of members of any fire company to remove a volunteer officer or voluntary member of such company for failure to comply with the constitution and by-laws of such company.”

The decision is posted on the Internet at:

 _____________________

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html
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Discourtesy and failure to obey a lawful order


Discourtesy and failure to obey a lawful order

OATH Index No. 851/14

A computer aide was charged with discourtesy, refusal to obey orders, and inefficient performance.

OATH Administrative Law Judge Faye Lewis found that the aide was guilty of misconduct when she was rude and unhelpful to a day care provider who repeatedly called her for assistance and when she frequently failed to return that provider's telephone calls.

The ALJ also found the aide guilty of misconduct when she closed a door in a colleague's face after the colleague approached to say that a client was waiting to see her, and when she failed to obey orders to provide her supervisor with a case folder and to resubmit a form.

Judge Lewis, however, concluded that it was not misconduct for the aide to tell her colleagues she was on her lunch break and did not want to be bothered, as meal periods are not work time.

As the aide did not have any history of formal discipline, ALJ Lewis recommended that she be suspended without pay for 12 days.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/00_Cases/14-851.pdf
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Sunday, May 18, 2014

Acting beyond the scope of one's duties


Acting beyond the scope of one's duties
2014 NY Slip Op 03586, Appellate Division, First Department

The Police Commissioner of the City of New York terminated the employment of a New York City police officer [Plaintiff] based on substantial evidence Petitioner “unnecessarily acted outside his role as an undercover officer and discharged his firearm in violation of department guidelines.”

The Appellate Division sustained the Commissioner’s decision, commenting that under the circumstances “The penalty of termination is not so disproportionate to the offense as to shock the conscience,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:


A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html

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Friday, May 16, 2014

Home addresses of State employees and retirees may be excluded from disclosure in response to a FOIL request


Home addresses of State employees and retirees may be excluded from disclosure in response to a FOIL request
Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 2014 NY Slip Op 03193, Court of Appeals

In Empire Center for New York State Policy the Court of Appeals held that the Freedom of Information Law, commonly referred to as “FOIL,” permits the names, but not the addresses, of retirees who receive benefits from public employees' retirement systems to be disclosed in response to a FOIL request.

Empire Center submitted a FOIL with the New York State Teachers' Retirement System and the Teachers' Retirement System of the City of New York seeking the names of the retired members of the systems. When the retirement systems refused to provide the names, Empire Center filed CPLR Article 78 petitions to compel disclosure. Supreme Court dismissed both petitions, and the Appellate Division affirmed in each case.*

The Court of Appeals reversed the lower courts’ rulings, explaining that the controlling FOIL provision, Public Officers Law  §89(7), provides, in pertinent part, that:

"Nothing in this article [i.e., FOIL] shall require the disclosure of the home address of an officer or employee, former officer or employee, or of a retiree of a public employees' retirement system; nor shall anything in this article require the disclosure of the name or home address of a beneficiary of a public employees' retirement system ….”**

Thus the home address of a retiree – but not his or her name – fall within the available enumerated exceptions to disclosure set out in FOIL. In contrast, the court noted the name and, or, the home address of  "a beneficiary of a public employees' retirement system" – a person entitled to benefits upon the death of the retiree – may be excluded from disclosure in response to a FOIL request.

The release of some public records is limited by a statute such as Education Law, §1127 - Confidentiality of records or §33.13, Mental Hygiene Law - Clinical records; confidentiality. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the record. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

Addressing the retirement systems’ argument that disclosure should be denied as an "unwarranted invasion of personal privacy" within the meaning of Public Officers Law §87 [2] [b]), the court concluded that  “the idea that anyone's privacy will be invaded is speculative” but in the event a FOIL request that seems to have such a purpose is made, that would be the time to consider the effect of the privacy exemption, including the provision addressing the "sale or release of lists of names and addresses if such lists would be used for solicitation or fund-raising purposes."

* See Matter of Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 103 AD3d 1009 [3d Dept 2013]; Matter of Empire Ctr. for N.Y. State Policy v Teachers' Retirement Sys. of the City of New York, 103 AD3d 593 [1st Dept 2013]

** The Freedom of Information Law does not bar an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to Article 14 of the Civil Service Law, “to obtain the name or home address of any officer, employee or retiree of such employer, if such name or home address is otherwise available under this article."

The decision is posted on the Internet at:

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Thursday, May 15, 2014

A complaint asserting a claim under Labor Law §740.(2) -- the Whistle Blower Law -- need not identify the specific "law, rule or regulation" allegedly violated by the employer


A complaint asserting a claim under Labor Law §740.(2) -- the Whistle Blower Law -- need not identify the specific "law, rule or regulation" allegedly violated by the employer
Webb-Weber v Community Action for Human Servs., Inc., 2014 NY Slip Op 03428, Court of Appeals

Civil Service Law §75-b* and Labor Law §740(2)** are commonly referred to as "whistleblower statutes,” and prohibit the employer from taking retaliatory personnel action against an employee because the employee discloses, or threatens to disclose to a supervisor or to a public body, an activity, policy or practice of the employer that is in violation of law, rule or regulation.

In Webb-Weber the “narrow issue” before the Court of Appeals was whether a complaint asserting a claim under §740(2) must identify the specific "law, rule or regulation" allegedly violated by the employer. 

The Court of Appeals concluded that there is no such requirement, holding that  “[t]he reasonable interpretation is that, in order to recover under a §740 claim, a plaintiff must show that [he or] she reported or threatened to report the employer's "activity, policy or practice." Quoting Richard A. Givens’ statement in Practice Commentaries,*** the Court of Appeals said that “the practice --- not the legal basis for finding it to be a violation — appears to be what must be reported."

Thus, for pleading purposes, the court ruled that the complaint need not specify the actual law, rule or regulation violated, although it must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct.

The Court of Appeals observed that in order to recover under a Labor Law §740 theory, the plaintiff has the burden of proving [1] that an actual violation occurred, in contrast to merely establishing that the plaintiff possessed a reasonable belief that a violation occurred, citing Bordell v General Elec. Co., 88 NY2d 869, and [2] that the violation must be of the kind that "creates a substantial and specific danger to the public health or safety," citing Remba v Federation Empl. & Guidance Serv., 76 NY2d 801.

* Civil Service Law 75-b.2(a) provides as follows: A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. "Improper governmental action" shall mean any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent's official duties, whether or not such action is within the scope of his employment, and which is in violation of any federal, state or local law, rule or regulation.

** Labor Law §740(2) provides as follows: Prohibitions. An employer shall not take any retaliatory personnel action against an employee because such employee does any of the following: (a) discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud; (b) provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any such violation of a law, rule or regulation by such employer; or (c) objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation.

*** Givens, Practice Commentaries, McKinneys Cons Laws of NY, Book 30, Labor Law §740, at 549 [1988 ed].

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_03428.htm
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Wednesday, May 14, 2014

Dishonesty ruled incompatible with individual’s employment as a peace officer


Dishonesty ruled incompatible with individual’s employment as a peace officer
OATH Index No. 1186/14

Disciplinary charges were filed against an enforcement agent [Employee] alleging that he failed to report a missing chemical spray canister and other agency equipment, and making false statements about what happened to them.

The agency’s attorney contended that in view of Employee’s status with the agency as a peace officer, the appropriate penalty was termination because of Employee’s admitted dishonesty is incompatible with his law enforcement position.

Noting that Employee persistently refused to provide a truthful explanation for the loss of the equipment, Oath Administrative Law Judge John B. Spooner recommended termination of employment as "integrity is vital" to Employee's job duties as a peace officer, which include providing truthful and accurate testimony at hearings.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/00_Cases/14-1186.pdf
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Tuesday, May 13, 2014

The 2014 Anderson Series Seminar’s Education Reform and The Common Core session is scheduled for May 20, 2014


The 2014 Anderson Series Seminar’s Education Reform and The Common Core session is scheduled for May 20, 2014
Source: Government Law Center, Albany Law School

The Albany Law School’s Government Law Center will host the next 2014 Annual Warren M. Anderson Breakfast Seminar Series, a nonpartisan hour-long breakfast program, on May 20, 2014 from 8-9 a.m. in the Assembly Parlor, at the State Capitol, 3rd FL. The program continues to be offered free of charge, but space is limited.

The speaker will discuss Education Reform and The Common Core.

For those interested, each seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”

To register or to obtain more information, contact Ms. Amy Gunnells at agunn@albanylaw.edu or telephone 518-445-2329. 

The Comptroller has the authority to review and report on the billing practices of a medical provider not a participating physician within the NYSHIP Empire Plan network


The Comptroller has the authority to review and report on the billing practices of a medical provider not a participating physician within the NYSHIP Empire Plan network
Martin H. Handler, M.D., P.C. v DiNapoli, 2014 NY Slip Op 03191, Court of Appeals

Among the patients treated by a physician and a medical group [Providers] were individuals insured by the Empire Plan, New York State's primary health benefit plan. The Empire Plan pays about 80% of the charges billed for the medical services provided to individuals covered by the Empire Plan. Providers challenged the authority of the State Comptroller to review their records as part of an audit of billing practices in the health care industry for claims paid by the Empire Plan

The Comptroller contended that he had the authority to review and otherwise report on medical provider’s billing practices as part of its audit of State expenditures. The Court of Appeals agreed.

Among the issues considered by the court were “co-payments” incorporated in the fee structure.

Participating providers have an agreement with United that specifies the fees they may charge. These providers bill claims, less a patient “co-pay,” to United Healthcare Insurance of New York [United] which processes and pays claims made by Empire Plan beneficiaries. In contrast, non-participating providers charge market rates for their services and bill the patient directly. United then reimburses the patient 80% of either the actual fee charged or the "customary and reasonable charge" for the service, whichever is lower. The patient is responsible for paying the provider’s bill, including the 20% that is not paid by United, from his or her personal funds.

Non-participating providers have a legal duty to collect patients' co-payments and failure to collect these fees can result in civil and criminal penalties for insurance fraud.*  

According to the decision, the non-participating provider's failure to collect a co-payment from an Empire Plan member inflates a claim's cost and adversely impacts the State's fisc. A provider that charges $100 for a service, and who collects $80 in State money, must collect $20 from the Empire Plan member. In the event that the provider does not collect the co-payment, it has provided a medical service for $80, not $100, and the State should have paid only $64 of that cost.

After the Comptroller had examined Providers billing records for certain periods of time, the auditors found Providers routinely waived the co-pay that was to be paid by Empire patients and that this resulted in more than $1.500,000 in overpayments by United during this period. The Comptroller recommended that United recover the overpaid sums of money, advise Providers of the advantages of participating in the Empire Plan, and contact the Department of Civil Service to develop a plan for preventing future waiver of required co-payments. The Comptroller took no independent enforcement action.

Providers then filed separate combined Article 78 and declaratory judgment actions against the Comptroller and United, challenging the Comptroller's authority to audit their books and sought judicial relief that included enjoining publication of the results of the audit and enjoining United from collecting any alleged overpayments.

Supreme Court granted the petitions in part and enjoined United from taking action based on the Comptroller’s audit results. In separate decisions, Supreme Court concluded that the Comptroller lacked constitutional authority to audit Providers because Providers are "not a political subdivision of the State."

The Appellate Division found the Comptroller has a constitutional duty to audit payments made by the State, and, as a part of that duty, the Comptroller has the authority to conduct post-audit reviews of payments made to Providers. The Appellate Division explained that were the Comptroller to lack authority to audit health care providers' payment records, "no other entity . . . would retain oversight" to prevent overpayments that result from waived co-insurance fees. The Appellate Division remitted the cases to Supreme Court for further proceedings to address Providers’ claims that the audit findings were arbitrary and capricious and lacked a rational basis. Supreme Court dismissed Providers’ petitions and they appealed to the Court of Appeals ”as of right under CPLR 5601(d), bringing up the prior orders of the Appellate Division, which involved a substantial constitutional question.” 

Providers contended that the Comptroller's audits exceeded the constitutional limitations on its powers because, as non-participants in the Empire Plan, they neither have a contract with the State nor receive State funds, and the Comptroller cannot audit them. 

Under the current provisions of law, the Comptroller is to audit State payments and receipts and the Legislature is prohibited from assigning administrative tasks to the office in order to protect "the independent character of the Comptroller's audit function."

Further, Civil Service Law §167 (7), provides that the Comptroller is to audit payments to the State's health insurance vendors whereby "The amounts required to be paid to any contracting corporation under any contract [with NYSHIP] shall be payable from such health insurance fund as audited by and upon the warrant of the comptroller[.]"

Thus, said the court, both the Constitution and statutes require the Comptroller to ensure proper billing and payment for the Empire Plan. In order to accomplish its legally mandated duties to prevent unauthorized payments and overpayments, the Comptroller must perform both pre- and post-audit review of Empire Plan payments.

The Court of Appeals rejected Providers’ theory that United’s role as a conduit severs any connection between the State funds and the their billing practices, putting the records beyond the Comptroller's reach, explaining that the Constitution does not limit the Comptroller's authority in this way and the fact that the State relies on a third-party conduit, United, does not change the character of the funds.

Holding that the Comptroller's limited examination of Providers' billing records amounted to a post-audit of State payments and was permitted by the Constitution, the Court of Appeals ruled that the judgments of Supreme Court and the prior orders of the Appellate Division reviewed should be affirmed, with costs.

* (see Insurance Law §403 [c]; Penal Law § 176.05 [2]).

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_03191.htm
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Monday, May 12, 2014

Disciplinary arbitrator’s treating one individual differently or less favorably than another similarly situated individual is not a reason to vacate the arbitration award.


Disciplinary arbitrator’s treating one individual differently or less favorably than another similarly situated individual is not a reason to vacate the arbitration award.
2014 NY Slip Op 03265, Appellate Division, Second Department

MTA Bus Co. had a policy banning cell-phone use while operating a bus. After the bus driver allegedly violated the MTA’s cell-phone policy three separate occasions and, in accordance with that policy, he had been suspended from employment for a period of 10 days.

Following the bus driver's fourth violation MTA terminated his employment. 

The bus driver’s union filed a grievance challenging the termination, and an arbitration hearing was conducted. After the hearing, the arbitrator concluded that the bus driver had committed a "cell phone violation," and that MTA's decision to terminate his employment was proper. The bus driver filed and Article 75 petition seeking a court order vacating the arbitration award.

Supreme Court denied the petition, in effect confirming the award and the bus driver appealed, contending that the arbitration award was irrational.

The Appellate Division, noting that "Judicial review of an arbitrator's award is extremely limited" said a court may vacate an arbitration award pursuant to CPLR 7511(b)(1)(iii) "only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Further said the court, "Courts are bound by an arbitrator's . . . judgment concerning remedies [and] cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one." In addition the court commented that the fact “That the arbitrator may have treated the petitioner differently or less favorably than another similarly situated bus driver is not a ground to vacate the arbitration award.”

The Appellate Division held that the arbitrator's award was justified and, hence, rational as the record showed that the bus driver was aware of MTA’s cell-phone policy and had been previously suspended for 10 days for violating that policy. The court explained that violation of the MTA's cell-phone policy, which also violates New York law, constitutes appropriate grounds for termination of employment.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_03265.htm
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Sunday, May 11, 2014

On the Blogs: REAL-NY


On the Blogs: REAL-NY
On the Internet at: http://realny.org/

Powered by the legal information website, LawHelpNY, REAL-NY is a is a public-interest news blog that focuses on stories and organizations that matter to the lives of low-income New Yorkers in general and to access to justice in particular.

The Blog stories and resources that may help people solve problems and bring attention to issues that need more attention.  Built around a community service media model, this blog targets low-income New Yorkers and the community groups, nonprofits, and government agencies that assist them.

Using the power of design, multi-media, discussion forums, online polls, and short and informative plain- it posts articles to help New Yorkers learn about their legal rights as they apply to current events and community resources.

REAL-NY provides general information only. To find a lawyer in your area please visit http://www.lawhelpny.org/ and select a topic which best covers your legal problem.

For more information, contact the Technology Innovations Manager at LawHelpNY, Wilneida Negron at wnegron@nylawhelp.org.
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Friday, May 09, 2014

A collective bargaining agreement may obligate the employer to paying certain legal expenses incurred by an employee in the negotiating unit


A collective bargaining agreement may obligate the employer to paying certain legal expenses incurred by an employee in the negotiating unit
Local 342, Long Is. Pub. Serv. Employees v Huntington, 2014 NY Slip Op 03271, Appellate Division, Second Department

Public Officers Law §18* permits a political or civil subdivision of the State whose governing body has agreed by the adoption of local law, by-law, resolution, rule or regulation to “confer the benefits of the section” upon its employees, and (ii) to be held liable for the costs incurred under these provisions including the defense and indemnification its officers and employees, other than the sheriff of any county or an independent contractor.

This provision may be triggered in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the officer or employee was acting within the scope of his or her public employment or duties.

However, this duty to provide for a defense does not arise where such civil action or proceeding is brought by or on behalf of the public entity employing such employee.

As the Local 342 decision demonstrates, a political or subdivision of the State may also obligate itself to be liable for such costs by including such an obligation in a collective bargaining agreement.

An arbitrator determined that the Town of Huntington had breached a provision in a collective bargaining agreement by failing to pay certain legal fees on behalf of an employee in the collective bargaining unit.

The Appellate Division said that Supreme Court properly concluded that the arbitrator's determination did not clearly violate a strong public policy, was not totally or completely irrational, and did not manifestly exceed a specific, enumerated limitation on the arbitrator's power.

The court explained that although the payment of a public employee's legal fees "would constitute an impermissible donation from the public purse in instances where there is no prior legal obligation on the part of the State or a municipality to provide reimbursement, the reimbursement is proper and considered additional remuneration where there is a prior legal obligation" to do so.

In this instance, said the Appellate Division, the relevant collective bargaining agreement expressly created a prior legal obligation on the part of the Town to pay the subject legal fees incurred by the individual.**
* Public Officers Law §17, provides for the defense and indemnification of officers and employees of the State as the employer by the State. .

** See Civil Service Law Section 204-a

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The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_03271.htm
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Thursday, May 08, 2014

A public employer may impose restraints on First Amendment activities of its employees that are job-related that would be unconstitutional if applied to the public at large


A public employer may impose restraints on First Amendment activities of its employees that are job-related that would be unconstitutional if applied to the public at large
Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 2014 NY Slip Op 03189, Court of Appeals

Members of a teachers' union picketing on a public street in front of a district school) displayed picketing signs from their cars parked where parents were dropping their children off at school district’s Woodland School. East Meadow Union Free School District brought disciplinary charges for misconduct against certain teachers, alleging that the teachers had created a health and safety risk by parking their cars so that students had to be dropped off in the middle of the street instead of at curbside.

After their respective hearings, the arbitrators found the teachers guilty of the misconduct charge and imposed a fine as the penalty. The arbitrators, acknowledging that the parking demonstration was conducted on public property while teachers were off-duty, and that their cars were legally parked, nonetheless concluded that teachers "intended to (and did) disrupt the student drop off and that the parked cars created a health and safety risk to children who had to be dropped off in the middle of a busy street in the rain." The Court of Appeals noted that although it was "fortunate" that no child was injured, the arbitrators determined that fact was irrelevant to their findings that teachers’ intentional conduct posed a potential threat to student safety.

The teachers than sued, seeking to vacate the arbitration awards in which they were found guilty of misconduct, contending that the disciplinary proceedings commenced against them, and the discipline ultimately imposed them, a fine, violated their right to free speech under the First Amendment to the United States Constitution.

Supreme Court denied the petitions but the Appellate Division reversed in each case. Applying the two-part balancing test from Pickering v Board of Educ. of Township High School Dist. 205, Will County Ill, 391 US 563,* the. Appellate Division decided that the teachers’ speech addressed a matter of public concern and, second, that the District failed to meet its burden of demonstrating that teachers' exercise of their free speech rights "so threatened the school's effective operation as to justify the imposition of discipline."

Although the Court of Appeals said it agreed with the Appellate Division with respect to the picketing demonstration, a form of "speech" protected by the First Amendment, addressed a matter of public concern, it disagreed with the Appellate Division’s conclusions with respect to the second step of the Pickering test and reversed the lower courts’ rulings.

The Court of Appeals said that viewing the record evidence in light of established federal precedent, it concluded that “the teachers' interests in engaging in constitutionally protected speech in the particular manner that was employed on the day in question were outweighed by the District's interests in safeguarding students and maintaining effective operations at Woodland.”

The school district, said the court, also satisfied its burden of proving that the discipline imposed here was justified because the teachers created a potential yet substantial risk to student safety and an actual disruption to school operations.

Addressing the Free Speech argument advanced by the teachers, the Court of Appeals said that “It is well settled that a public employer may not discharge or retaliate against an employee based on that employee's exercise of the right of free speech” but “Equally well settled, however, is that ‘the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general,’" citing Pickering,

Accordingly, said the court, public employers "may impose restraints on the First Amendment activities of its employees that are job-related even when such restraints would be unconstitutional if applied to the public at large." Thus, although "public employees like . . . teacher[s] do not leave their First Amendment rights at the schoolhouse door, . . . it is plain that those rights are somewhat diminished in public employment." Accordingly, the Court of Appeals, holding that the teachers’ demonstration constituted "speech" subject to First Amendment strictures, considered “that speech” in the context of the Pickering balancing test.

On the record, said the court, the teachers’ speech was on a matter of public concern and entitled to First Amendment protection. It then moved on the the “second test,” weighing the employee's First Amendment rights against the public employee's interest " in promoting the efficiency of the public services it performs through its employees'.

The interests the District asserted: “ensuring the safety of its students and maintaining orderly operations at Woodland” are legitimate said the court. As the evidence at the hearings showed that the parking demonstration created dangerous traffic conditions in front of the school that could have injured a student and that caused actual disruption to the school's operations, the school district contented that this was sufficient to justify its discipline of the teachers and that it was not required to prove that a student was actually injured for the Pickering balance to tip in the District's favor.

The majority of the Court of Appeals agreed and reversed the Appellate Division’s ruling, with costs and confirmed the arbitration award.

N.B. Justice Smith concurred but “only in the result, because [he did] not agree with the majority's view that the conduct of these teachers was speech or expression protected by the First Amendment,”  stating that he was “troubled by the implication that intentionally disruptive and dangerous conduct can, if it is designed for the purpose of calling attention to the actor's message, qualify for First Amendment protection.” In contrast, Justice Rivera dissented, stating that “I dissent from the majority's decision because I can find no legal or factual error in the Appellate Division's application of the Pickering balancing test to the facts of these cases. I would affirm the Appellate Division's orders and its conclusion that the District violated the teachers' free speech rights.”

* A summary of Pickering, “Essentials of the "Pickering Balancing Test” was posted earlier on NYPPL at http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_03189.htm
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Wednesday, May 07, 2014

The State’s reduction of its employer contribution for health insurance premiums for judges was an unconstitutional diminution of judicial compensation


The State’s reduction of its employer contribution for health insurance premiums for judges was an unconstitutional diminution of judicial compensation
Bransten v State of New York, 2014 NY Slip Op 03214, Appellate Division, First Department

Sitting and retired members of the New York State Judiciary challenged the State’s recent decrease in its employer contribution to the cost of the judges' health insurance premiums, contending that it violated the Compensation Clause of the New York State Constitution which provides "compensation [of a judge] shall be established by law and shall not be diminished during the term of office for which he or she was elected or appointed."*

The Appellate Division agreed, finding that the reduced contribution, which in turn increased the amounts withheld from judicial salaries as employee contribution towards health insurance premiums, constitutes an unconstitutional diminution of judicial compensation.

The court explained that the reduction in the State’s employer contribution for health insurance premiums occurred in 2011 when the State, faced with a serious budget shortfall, threatened to lay off thousands of workers unless employees in State's several collective bargaining units made wage and benefit concessions that included bearing more of the cost of their health insurance premium.

The State Legislature in August 2011 amended Civil Service Law §167.8 to provide that “The president [of the Civil Service Commission], with the approval of the director of the budget, may extend the modified state cost of premium or subscription charges for employees or retirees** not subject to an agreement referenced above and shall promulgate the necessary rules or regulations to implement this provision.”

The President, with the State Budget Director's approval, then adopted a Regulation that reduced the State's contribution for health insurance premiums not only for employees in State’s several negotiating units that had agreed to the reductions through collective bargaining, but also for some “nonunionized employees” and retirees of the State as the employer.

In accordance with these new Regulations, in September 2011 the State notified judges that it would reduce its contribution to sitting judges' health insurance premiums by 6% and reduce its contributions to retired judges' health insurance premiums by 2%.

The State argued that the Compensation Clause does not prohibit the State from decreasing its contributions to the health insurance premiums because any reduction to judicial compensation was "indirect" and nondiscriminatory.

Supreme Court, however, found that the State's reduced contribution amounted to a direct diminution of judicial compensation because it increased the amount withheld from judicial salaries.

On appeal, the State did not contend that reducing its contribution for health insurance premiums did not directly diminish judges' compensation but rather that its contribution to judges' health insurance premiums is not "compensation" within the meaning of the Compensation Clause.

The Appellate Division rejected that argument, explaining “it is settled law that employees' compensation includes all things of value received from their employers, including wages, bonuses, and benefits” and the Appellate Division, Second Department has expressly found that “health insurance benefits are a component of a judge's compensation,” citing Roe v Board of Trustees of the Village of Bellport, 65 AD3d 1211.

In contrast to State employees who either consented to the State's reduced contribution in exchange for immunity from layoffs or were otherwise compensated by the State's promise of job security, the decision points out that judges were forced to make increased contributions to their health care insurance premiums without receiving any benefits in exchange. The Appellate Division noted that the judiciary “had no power to negotiate with the State with respect to the decrease in compensation,” and they “received no benefit from the no-layoffs promise because their terms of office were either statutorily or constitutionally mandated.” 

Thus, said the court, “§167.8 uniquely discriminates against judges because it imposes a financial burden on them for which they received no compensatory benefit.”***

Accordingly, said the Appellate Division, the State’s motion to dismiss was properly denied by Supreme Court.

* New York State Constitution, Article VI, §25[a]. 

** With respect to retirees, prior to the 2011 amendment to Civil Service Law §167.8 it provided that employer contribution for health insurance premiums may be increased pursuant to the terms of a collective bargaining agreement but that such increase “shall not be applied during retirement.”

*** Much the same argument would apply to retirees of the State as the employer, including retired judges,  who retired prior to the effective date of the President’s Regulation as such retirees are not employees within the meaning of the Taylor Law nor did they receive any benefit with respect to job security as, like sitting judges, retirees cannot be “laid off.”

The Appellate Division's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_03214.htm


The Supreme Court's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_23175.htm
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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